You and your spouse have heard too many horror stories about divorce. You know individuals, even couples, who have fought for years, in and out of court, to finalize their divorce. You want to avoid the waste of money, time, energy, and most of all the human damage from a litigious divorce. This much you both know, and it has led you to mediation as the process of choice. And, a wise choice it is. However, now that you, as a couple, agree that you will mediate your divorce settlement, are there any tips, any advice, any strategies to ensure that your mediation will be successful? The answer is yes! After over three decades of mediating divorces, let me share some of the secrets for successful divorce mediation.
Secret One: Recognize that mediation is a problem-solving process.
Even if you and you spouse enter mediation thinking you know what you want, exercise a bit of patience. Use the process to your advantage—be prepared to explore the implications of your decisions on each of you—its benefits as well as its disadvantages. All agreements have ramifications, be they personal or financial. In short, know what you are getting and what you are giving up.
Secret Two: Capitalize on your knowledge of each other.
What is your spouse concerned about? What are your spouse’s needs—now and later? What are your spouse’s priorities? Do not get tangled in your disappointments. Separate, as much as is possible, anger and hurt, from your realistic understanding of this person who is your spouse. This knowledge is invaluable in the process of putting forth ideas and proposals for reaching a good settlement.
Secret Three: Do not get stuck in drawing a line in the sand. Do not say either I get “this or that” or I get a lawyer to do it.”
This is truly a counterproductive approach. Say what is important to you and why it is important and then be willing to engage in an exploration of different scenarios. Be willing to voice your ideas and to listen. Be open to alternative solutions, not infrequently they may prove more advantageous than your first, line in the sand, stance.
Secret Four: Gather the information.
The divorce process requires that you each disclose all your assets and all your liabilities. However, it is not only important to compile the financial data, you also need to understand the numbers. If you are not comfortable with numbers, and many highly intelligent people are not, say so. You may need help from the mediator or from a financial advisor. Do not hold back this concern; surely your spouse already knows your feelings. The mediator will help enhance your learning curve, albeit with the participation of your spouse.
Secret Five: Identify with the mediator, what information needs to be gathered, what tasks need to be completed.
Each of you needs to be willing to do the outside work. Make sure that your mediator is adept at clarifying the information that is needed and the tasks to be undertaken. A facilitator, in a problem-solving process, must be knowledgeable in knowing how and where to collect information as well as to be able to analyze its implications.
Secret Six: Settlement, in and of itself, does not constitute success.
Recognize that reaching an agreement does not render it a good agreement. Nor should success be defined as an agreement in which both parties are unhappy—since when does this commonly voiced conclusion constitute a successful agreement? You need to know, from the outset, all areas that will be part of the mediation process. You need to understand that a settlement is more involved than:
Who gets what? It is also when, how, and under what circumstances.
Who pays what to whom? It is also the terms and contingencies for the payments, a list too long for this article.
In summary, to have a good agreement both parties need to think it is fair and it will work. It is pointless to reach an agreement that cannot be followed—that is neither good nor fair, that is a path to failure.
At The Centre for Mediation and Dispute Resolution, we are committed to helping couples reach an agreement that they both feel deserves the label of being “fair,” both in terms of dollars and in terms of its future implications for all involved parties. Every couple needs to understand what they have agreed to and what responsibilities will be imposed on each of them now and in the future. Those with children must recognize that they will be connected all their lives; this connection imposes future obligations on each one, obligations that may not be quantifiable, but are certainly worthy of recognition. Those without children as well as those with children, still share a history, a past in which they had goals for themselves as individuals and as a couple. At the least, a fair and workable agreement acknowledges past connections and fresh starts without the animosity and destruction caused by a litigious divorce.